Beginning in 1997, a total of 38 states passed laws regulating unsolicited electronic mail or
"spam." State anti-spam laws range from
narrow provisions directed at sexually-oriented email to comprehensive acts imposing a wide variety of
restrictions. Common provisions of state anti-spam laws:
Beginning in 1997, a total of 38 states passed laws regulating unsolicited electronic mail or "spam." State anti-spam laws range from narrow provisions directed at sexually-oriented email to comprehensive acts imposing a wide variety of restrictions.
Common provisions of state anti-spam laws:
A federal anti-spam law took effect January 1, 2004. Public Law 108-187, the CAN-SPAM Act, was signed into law by President Bush in December 2003. Click here for a summary. The Act generally pre-empts the state anti-spam laws already on the books. However, state laws prohibiting deception in connection with electronic mail, laws of general application (such as those dealing with trespass, contract, or tort law), and laws governing computer crime, are not pre-empted.
The CAN-SPAM Act has a number of provisions that differ from those commonly found in state anti-spam laws:
On May 19, 2004, the Federal Trade Commission adopted a final rule implementing the CAN-SPAM Act's requirement that sexually explicit emails be identified as such in the subject heading, and that their initially viewable portion contain no sexually explicit material. On September 17, 2004, the FTC issued a report on the feasibility of offering a "bounty" to those who provide information leading to the identification of a CAN-SPAM violator. The Commission recommended limiting a bounty program to insiders and whistle-blowers who can provide "high value" information about a violation.
The CAN-SPAM Act also directed the Federal Communications Commission to adopt rules designed to protect mobile service customers from unwanted commercial messages. On August 4, 2004, the Commission adopted a general prohibition on sending commercial messages to any address referencing an Internet domain associated with wireless subscriber messaging services.
There have been legal challenges to anti-spam laws. Opponents have raised two arguments. Their first is that state spam laws violate the Commerce Clause of the U.S. Constitution by putting an unfair burden on out-of-state business interests and by creating inconsistent state-law requirements. Their second argument, which has also been used to attack "junk fax" statutes, is that these laws unreasonably restrict commercial free speech.
In State v. Heckel, 143 Wash. 2d 824, 24 P.3d 404 (2001), the Supreme Court of Washington held that state's anti-spam law did not violate the Commerce Clause. In doing so, it noted that the law was directed at senders who used a Washington-based computer or targeted Washington residents, and concluded that the benefits of the law--namely, promoting truthful headers and routing information--outweighed the burdens it placed on senders.
In Ferguson v. Friendfiinders, Inc., 94 Cal. App. 4th 1125, 115 Cal. Rptr. 2d 258 (2002), the California Court of Appeal, Second District, reached a similar result, holding that state's anti-spam law did not violate the Commerce Clause.
In MaryCLE v. First Choice Internet Inc., 166 Md. App. 481, 890 A.2d 818 (Md. Ct. App. 2006), an intermediate appeals court overruled a trial court and held that the Maryland Commercial Electronic Mail Act did not violate the Commerce Clause.
However, in Jaynes v. Commonwealth, No. 062388 (Va. Sup. Ct., September 12, 2008), the Supreme Court of Virginia unanimously reversed a criminal conviction under that state's anti-spam law. The alleged offense was intentionally falsifying the sender's routing information. The court concluded that since the law was not limited to commercial electronic mail, it could be used to prosecute those who exercised their First Amendment right to disseminate political speech under names other than their own. It held that the law was overly broad and therefore unconstitutional.
To read the full text of a jurisdiction's anti-spam laws, click on the link below.
Introducing "Smart Text": Several enhancements have been added to make the statutes and administrative rules easier for you to use: subject lines are more focused and descriptive; subdivisions are indented to make the organization of sections more clear; references that are not self-evident (e.g., "this act") are explained; and citations to session laws are uniform and comprehensible. Additionally, when only part of a long code section is pertinent to the topic at hand, the non-pertinent material appears in a lighter color.
A - Violators are subject to civil penalties. Disclaimer:
Disclaimer:The material relating to anti-spam laws is presented as an example of legal research and analysis performed by Paul Ruschmann, J.D. It is based on statutes, administrative rules, and session laws obtained from official sources. The law is constantly changing; and code sections may have been added, amended, or repealed since this material was compiled. This material is presented solely for informational purposes, and is not to be construed as legal advice or to create an attorney-client relationship. If you have specific questions, you should consult with your attorney. Those parts of the site that are not part of the public domain are copyrighted, and may not be copied or distributed without the author's permission.
2002-08 PAUL RUSCHMANN. All Rights Reserved.